In the week since the State of the Union, it seems we analyst-types have dissected every word; but perhaps as many people have taken the President to task for words not spoken: poverty, race, gun control.
For me, there were two more words noticeably absent: Guantanamo Bay.
As I have noted here before, I have been covering the detention center there since it opened in January 2002. I was listening for a renewed promise that the prison at Gitmo would close, once and for all.
I was listening for another reason, too. Earlier in the day, before the president spoke to Congress and the nation, Ahmed Ghailani, the first Gitmo detainee to be tried in a U.S. civilian court, was sentenced to life in prison, without parole, for helping al Qaeda bomb two U.S. embassies in east Africa.
The Ghailani case has special resonance for me. In 1998, I was co-anchoring the overnight World News Now with Anderson Cooper, when the bombs went off. We broke the story, as the first awful reports came in from Kenya and Tanzania. More than two hundred people dead and thousands of people injured. The images on the ground were horrific and have stayed with me ever since.
Ghailani's trial was held in New York in large part because four of the men convicted in the plot were tried in the same federal courtroom in back in 2002. Last November, a federal jury also found Ghailani guilty.
Their verdict was not without controversy, however. Prosecutors had charged Ghailani with more than 280 counts of conspiracy and murder. The jury, however, only convicted on a single count of conspiracy. Why a conviction on just a single count to destroy U.S. buildings and property? How had the prosecution's case nearly unraveled?
The answer, according to most analysts: Torture. Allegations of torture sullied the evidence. A key witness, alleged to have sold Ghailani the TNT used in the bombings, was not permitted to testify. Most significantly, Ghailani's alleged confession was excluded.
But it is not just the Ghailani case. Allegations of torture in the course of post-9/11 detention — before most detainees ever arrived at Guantanamo — hang over the detention center there. Whatever proceedings the current administration may choose to pursue against the detainees will be considerably affected by that political and legal reality.
In Ghailani, Attorney General Holder and his Department of Justice could not be certain how a federal judge (as opposed to a military commission) would deal with the torture issue. In civilian court, torture can be grounds to dismiss a case, or to acquit — as it should be.
On the facts of Ghailani's case, Judge Lewis Kaplan found that Ghailani was an "al Qaeda operative.” In Judge Kaplan’s view, even if Ghailani had been tortured, it didn’t take away from the severity of his crime. That one fact, therefore, did not affect the severity of the sentence meted out.
"A sentence must be imposed that, in addition to other things, makes it crystal clear that others who engage or contemplate engaging in deadly acts of terrorism risk enormously serious consequences," Kaplan said.
But will the Ghailani case — and the harsh result — increase the likelihood civilian trials for the remaining Guantanamo detainees? And will it, therefore, mean the prison camp will close?
I don’t think so.
As soon as President Obama took office, he signed the Executive Order for the closure of the detention center. Yet, it remains open. It begs the question, whether the administration will ever be able to close the prison. Given the practical realities, the hard but honest answer may be, no.
Our allies in Europe and elsewhere want nothing to do with these detainees.
Both houses of Congress denied President Obama’s funding requests to shut down Guantanamo and relocate the prisoners to the United States. (And that was the last Congress, by the way, with Democrats in control.)
So, despite the President’s best intentions, there are still 175 detainees housed down at Guantanamo.
Of course, the Obama administration is working to find other ways to deal with the detainees. Military commissions are poised to begin again, but this time with a review process in place. That would afford detainees a means through which they can challenge their detention. Of course, it also sanctions that detention without a trial — and indefinitely. It is an un-American notion, but it may be one without any practical alternative.
Jami Floyd is an attorney, broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues.